GA HB 528 Proposed Bill to Restrict Records Has Major Issues

March 6, 2020

 

Date:              March 6, 2020

TO:                 Chairman Bert Reeves and Subcommittee of Judiciary Non-Civil and Rep. Mandi Ballinger

Representative Sharon Cooper     Representative Ed Setzler   Representative Micah Gravley    Representative Barry Fleming   Representative Pam Dickerson    Representative Bob Trammel    Representative William Boddie    Representative Deborah Silcox   Representative Martin Momtahan   Representative Chuck Efstration – Ex Officio   

 FROM:          African American Juvenile Justice Project www.aajjp.com

RE:                  March 9, 2020 Committee Meeting – HB 528 Restriction of Record -- HB 528 28 9274 ER “Georgia Crime Information Center”

 

The African American Juvenile Justice Project has reviewed the proposed legislation to restrict records.  We commend the Assembly on its efforts in this space.  We also recognize the importance of balancing public safety with public policy.  However, after presenting numerous draft versions to members of the Georgia General Assembly over the years, we find this version to be convoluted, time consuming, and adversely impacting our community.  Unlike most jurisdictions, this Bill requires a formal petition to the court with cost unless proven indigent, requires a hearing, requires prosecutors approval and the judge for persons whom successfully completed their sentence, and denies appellate review, just to name a few.

 

With all due respect, this proposed legislation adversely impacts the African American community because it targets the three known areas of employment and employability by most African Americans, as the exception to acknowledgement of a criminal record.  Statistically speaking, most African Americans are employed or seek employment in three fields: Education, Criminal Justice and Healthcare/Human Services.  

 

127 (4) An individual may petition and receive relief under this subsection for no more than

128 three indictments or accusations in a lifetime.

129 (5) If an individual's record is restricted pursuant to this Code section, such individual

130 may lawfully deny or fail to acknowledge the arrests and convictions to an employer or

131 potential employer except when that individual:

132 (A)  Is a candidate for employment with a criminal justice agency;

133 (B)  Is seeking employment, a license, or a contract with the Department of Human

134 Resources' Division of Family and Children Services, Adult Protective Services in the

135 Division of Aging Services, the Department of Public Health, or the Department of

 

Therefore, rather than a blanket denial of the opportunity to fail to acknowledge.  The language could add a provision to include whether the crime was against a child, elderly, or member of law enforcement, etc., as the determining factor whether an acknowledgement is permissible.

 

We are pleased that the provision for timeliness of application is within the timeframe that we proposed in our draft in 2012 and 2015, 2017 and 2019.  However, we respectfully, ask that the Assembly consider an automatic restriction.  When judges preside over cases under First Offenders and Conditional Discharges, both the plea deal, sentencing and/or order clearly states that the case is under First Offender/CD.  The case disposition is generally automatically reported to GCIC and the First Offender appears on their record without a petition requirement.

 

Similarly argued, we ask that the language of the law be simple and not convoluted or overburdensome on the accused.  An automatic provision after the Five/Three-year timeframe would allow for the restriction to be on their record.  Then, the accused would simply have to review their record to determine if after that deadline whether the record is restricted.  Its akin to credit bureau agencies that automatically delete files or add statements to a file after 7 years or 10 years of bankruptcy. Alternatively, to the First Offender addendum already in place at the time of sentencing.

 

With all due respect, it is not necessary to attain approval from the prosecutor if a person has satisfactorily completed their sentence.  The role of the prosecutor should be completed, too. 

 

This type of mechanism creates disparity, and arbitrary, capricious, and discriminatory enforcement and if not intended, then it becomes an unintended consequence.  Plus, it is overburdensome to attain a restriction.  Simply put, just list all of the crimes that would warrant an automatic restriction.  At the time of sentencing, the court records and the order would specify the same.  Currently, that is in place for Conditional Discharge offenses and First Offender.  Those accused or not required to return to add that provision to their record and some are charged under the seven (7) deadly sins.

 

"(s)(1) Notwithstanding subsection (i) of this Code section, an individual may petition

45 the court in the jurisdiction where the conviction occurred to restrict access to criminal

46 history record information as set forth in paragraph (3) of this subsection when an

47 individual was convicted in this state of certain felonies and misdemeanors as set forth

48 in paragraph (2) of this subsection, provided that such individual successfully completed

49 the terms of the sentence and has maintained a law abiding life as shown by not having

50 been convicted of any criminal offense in any jurisdiction for at least five years for a

51 felony and three years for a misdemeanor, excluding any arrest for a nonserious traffic

52 offense; provided, further, that he or she has no pending charges in any jurisdiction

.53 (2)  Record restriction may be granted if the individual was convicted of a nonviolent

 

Court Approval and Denial

 

The Bill authorizes judges to make a decision not subject to further review for 2-years. We are concerned about the unbridled discretion of judges without any appellate review, if denied. This provision should be modified.

(L)  The court shall not deny the individual's petition without first holding a hearing;

114 (M) If the court denies the individual's petition under this Code section, the individual

115 shall not submit a new petition to restrict and seal the same conviction until at least two

116 years have passed from the date of such final decision;

117 (N) Upon the granting of a restriction under this Code section, the clerk of court shall

118 file the order in the case record and shall enter the restriction into the Georgia Crime

119 Information Center data base in the manner prescribed by Georgia Crime Information

120 Center; and

121 (O) Within 60 days of the court's order, the clerk of court shall seal its records and

122 cause every document, physical or electronic, in its custody, possession, or control to

123 be restricted.  Such information shall always be available for inspection, copying, and

124 use by criminal justice agencies as defined in paragraph (4.1) of Code Section 17-17-3,

125 the Judicial Qualifications Commission, and the individual who filed the motion under

126 this Code section without a court order unsealing such records.

 

 Conclusion

 

Respectfully, this proposed legislation returns us to the pre-2013 and 2015 restriction/expungements where too much was required to do a simple task.  There was a time when an accused could simply go to the GCIC website, download a form and then pay a $25.00 fee and file their request with the arresting agency, etc.  AAJJP assisted many applicants in this process. 

 

With all due respect, we need to find a simpler way to achieve this goal. No other jurisdiction creates this type of paper trail.  We went from expungement to restriction and now actual court proceedings.  It becoming more time consuming, costly and interfering with judicial economy.  Restrictions should not warrant any hearing if the language of the law specifies the crimes permissible and the time frames for restriction.  Unlike the rest of the country, Georgia is moving further away from the ideal of offering a Fair or Second Chance. 

AAJJP highly recommends that Georgia review the PA, CA or NY statutes in this space.  Georgia should authorize deletion of certain records after 5/3 years for non-violent misdemeanor records.

 

Finally, any individual arrested whose case resulted involved youthful offenders, non-convictions, dismissed (also known by the term nolle prosequi, or no prosecution), closed case without any charges, or a case not presented to the grand jury or dead docketed should be automatically deleted not simply restricted.  According to a recent study, 4.2 million Georgians have arrest records that impede what AAJJP refers to as HEMS [Housing, Healthcare, Education, Employment, Military, Maintenance, Support and Services].

Thank you for your anticipated cooperation.

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